The repeal of net neutrality rules became a near-certainty about a year ago when Donald Trump won the presidency and appointed Republican Ajit Pai to the FCC chairmanship. Pai and Republican Commissioners Michael O'Rielly and Brendan Carr provided the three votes necessary to overturn the net neutrality rules and the related "Title II" classification of broadband providers as common carriers.

Democrats Mignon Clyburn and Jessica Rosenworcel provided bitter dissents in today's 3-2 vote. Despite the partisan divide in government, polls show that majorities of both Democratic and Republican voters supported the rules, and net neutrality supporters protested outside the FCC headquarters before the vote.

Going forward, home Internet providers and mobile carriers will be bound not by strict net neutrality rules but by whatever promises they choose to make. ISPs will be allowed to block or throttle Internet traffic or offer priority to websites and online services in exchange for payment.

"The Internet is the greatest free market innovation in history," Pai said before today's vote. "What is responsible for the phenomenal development of the Internet? It certainly wasn't heavy-handed government regulation."

"Following today's vote, American consumers will still be able to access the websites they want to visit," he also said.

Pai repeated his claim that "under title II, investment in high-speed networks has declined by billions of dollars." He did not mention that major broadband providers themselves have told investors that Title II hasn't harmed their investment. He also has not provided data to support a new claim that a few small Internet providers were hurt by the rules.

Pai said that today's decision will achieve regulatory parity in the "Internet economy," putting Internet providers under a regulatory regime similar to the one that governs search engines and other online platforms. He compared Twitter blocking certain tweets to ISPs blocking websites. "These are very real, actual threats to the open Internet," he said.

The FCC will have to defend its decision in court, as pro-net neutrality groups plan to appeal. Advocates are also pushing Congress to reinstate net neutrality rules.

Democratic dissent

As long as ISPs publicly disclose the blocking, throttling, or paid prioritization, they won't be violating any FCC rules. The Federal Trade Commission could punish ISPs if they make promises and then break them, but there's no requirement that the ISPs make the promises in the first place.

"As a result of today’s misguided action, our broadband providers will get extraordinary new power from this agency. They will have the power to block websites, throttle services, and censor online content," Rosenworcel said. "They will have the right to discriminate and favor the internet traffic of those companies with whom they have pay-for-play arrangements and the right to consign all others to a slow and bumpy road."

Further Reading

Even though broadband providers may say they won't do such things, "they have the technical ability and business incentive to discriminate and manipulate your Internet traffic" and now have the legal green light to do so, she said.

Enlarge/ FCC Commissioner Mignon Clyburn addresses protesters outside the Federal Communication Commission building to rally against the end of net neutrality rules on December 14, 2017 in Washington, DC.

The FCC "is handing the keys to the Internet... over to a handful of multi-billion dollar corporations," she continued. The repeal plan has drawn a bipartisan outcry "because the large majority of Americans are in favor of keeping strong net neutrality rules in place," she said.

Broadband networks may become congested again when "a high-traffic video provider" is forced to pay for network interconnection, as happened with Netflix before the rules were enacted, Clyburn said. She continued:

Maybe several providers will quietly roll out paid prioritization packages that enable deep-pocketed players to cut the queue. Maybe a vertically integrated broadband provider decides that it will favor its own apps and services. Or some high-value Internet-of-things traffic will be subject to an additional fee. Maybe some of these actions will be cloaked under non-disclosure agreements and wrapped up in mandatory arbitration clauses so that it will be a breach of contract to disclose these publicly or take the provider to court over any wrongdoing. Some may say, "Of course, this will never happen." After today’s vote, what will be in place to stop them?

O'Rielly said that there aren't enough examples of ISPs acting badly to justify the net neutrality rules.

“The FCC is not killing the Internet”

"I am simply not persuaded that heavy-handed rules are needed to protect against hypothetical harms," O'Rielly said. "In all this time, I have yet to hear recent unquestioned evidence of demonstrable harm to consumers that demand providers be constrained by the completely flawed regulatory invention. I still cannot endorse guilt by imagination."

"This is a great day for consumers, for innovation, and freedom," Carr said. "Title II did not create the open Internet, and Title II is not the way to maintain it."

"The FCC is not killing the Internet," Carr also said.

Comcast deleted net neutrality pledge

Clyburn mentioned that Comcast already deleted a "no paid prioritization" pledge from its net neutrality webpage, opening the door to charging websites for priority. (Comcast says it has no plans to implement paid prioritization, but the changed pledge would make it easier for the company to do so legally.)

ISPs may even be able to avoid FTC enforcement. AT&T is pursuing a lawsuit that could strip the FTC of enforcement power over the broadband services offered by landline and mobile phone companies. But Pai chose not to wait for the resolution of that court case before eliminating his own agency's enforcement authority.

The repeal order will take effect 60 days after it is published in the Federal Register.

The FCC's own chief technology officer expressed concern about the future of Internet service in an internal email this week. CTO Eric Burger noted in the email that Pai's proposal would allow ISPs to block legal Internet content as long as they disclose the blocking, according to Politico.

An FCC official told Politico that these concerns have been addressed in an edit to Pai's proposal. While Pai released his draft order last month, the final text of today's repeal isn't available yet.

Net neutrality supporters protesting the repeal in Washington, DC on December 8, 2017.

Further Reading

The FCC is giving up its oversight of interconnection payment disputes between ISPs and content providers or other network operators. If companies don't pay the fees ISPs demand for network interconnection, the quality of video streaming services and other websites could suffer. That's what happened with Netflix on major ISPs' networks before the net neutrality rules were enacted.

Further Reading

The FCC's repeal order also claims the authority to prevent state and local governments from enacting their own, similar net neutrality and disclosure rules.

Plans for legal action

But advocacy groups are already planning to challenge the repeal in court. Yesterday, a pledge to file a lawsuit came from the National Hispanic Media Coalition, which previously used the Freedom of Information Act to force the FCC to release the text of net neutrality complaints filed by Internet customers.

“We will fight in the courts, Congress and in every corner of our country”

"The FCC is set to remove those protections without even taking a look at the over 50,000 Net Neutrality complaints filed by consumers over the last two years," NHMC General Counsel Carmen Scurato said. "This is a fatal error in the process, and the FCC's lack of acknowledgement or analysis of these complaints leaves a gaping hole in the record."

Lawsuits could also be filed by Incompas, a trade group that represents network operators, and the Internet Association, which represents Web companies including Amazon, Facebook, and Google. Both threatened lawsuits this week.

"The fight to save the Internet has just begun. We will fight in the courts, Congress and in every corner of our country until a free and open Internet is returned to the American people," Incompas said.

The Internet Association said it is weighing its legal options for "a lawsuit against today's Order" but would also accept a strong net neutrality law imposed by Congress.

Plenty of organizations might appeal, said consumer advocate Gigi Sohn, who was a top counselor to then-FCC Chairman Tom Wheeler when the commission imposed its rules.

"I think you'll see public interest groups, trade associations, and small and mid-sized tech companies filing the petitions for review," Sohn told Ars. One or two "big companies" could also challenge the repeal, she thinks.

Lawsuit filers can challenge the repeal on numerous respects, she said. They can argue that the public record doesn't support the FCC's claim that broadband isn't a telecommunications service, that "throwing away all protections for consumers and innovators for the first time since this issue has been debated is arbitrary and capricious," and that the FCC cannot preempt state net neutrality laws, she said.

Further Reading

The FCC's refusal to do anything about widespread impersonation and fraud in the public comments system and its refusal to make net neutrality complaints public in a timely fashion could fuel an argument that the FCC violated the Administrative Procedure Act, she said.

Further Reading

Pai's claim that the rules caused broadband providers to lower network investments (despite evidence to the contrary) will also likely be challenged, she said.

"What the FCC has going for it, of course, is the discretion that agencies get for making policy and determining the scope of its own authority," Sohn said.

Congressional Democrats plan to file legislation that would overturn the repeal, and advocacy groups are pressuring lawmakers to support that effort. But the plan probably has little chance of success because Republicans have a majority in Congress and President Trump supports overturning the rules. A more likely outcome is for Congress to impose a new set of rules that would be weaker than the ones just repealed, but there has been no sign that Democrats and Republican lawmakers are close to a compromise.

ISPs say Internet service won't change

Lobbyists for Internet providers insist that they won't mess with consumers' Internet connections.

"Your Internet Thursday afternoon will not change in any significant or substantial way... nor will it be different next week, nor will it be different on a Thursday a year from now," cable lobbyist Michael Powell, a former FCC chairman who now leads the NCTA lobby group, told reporters in a conference call yesterday.

An open Internet is just good business and has been the industry policy since AOL abandoned the closed Internet model, Powell said. "It's rooted in sound self-interest," Powell said. "[ISPs] make a lot of money on the open Internet. They have discovered in decades that the open Internet model is much more profitable than a closed Internet model that creates artificial scarcity or clamps down on users."

“I don’t see how anyone could slow down their network and retain customers”

Powell said ISPs aren't going to block Internet traffic but that "reasonable" forms of paid prioritization should be allowed because it could be consumer-friendly.

The wireless industry's top lobbyist agreed with Powell.

"I don't see how competitively anyone could slow down their network and retain customers. Just imagine the commercials and tweets you would see from other providers," Meredith Attwell Baker, who is CEO of the CTIA lobby group and was formerly an FCC commissioner, said in the conference call. Baker also worked for Comcast before taking over at CTIA in 2014.

"No one is advocating blocking traffic," Baker also said. "Ultimately, these are hard network engineering questions, and important ones. The Internet will not be gone or broken, I promise."

Powell is confident that the net neutrality repeal will survive in court. Pai's FCC "has done a very thorough job in writing a very strong and legally defensible decision," he said.

Powell noted that the Supreme Court in 2005 upheld an FCC decision to classify cable Internet access as an "information service" rather than telecommunications. That Supreme Court decision is "binding precedent" for all US appeals courts, and courts have shown the FCC a high degree of deference on the question of how to classify broadband, Powell said.

Judges allowed Obama's FCC to change the broadband classification based on its policy preferences, "and we would expect that that same principle would be applied here," he said.

While the 2015 FCC reclassified broadband as a telecommunications service in order to impose common carrier rules, Pai's FCC made it an information service once again today.

A brief history of network neutrality

The FCC has been enforcing neutrality on telecommunications networks for many decades—remember the 1968 Carterfone decision that allowed third-party devices to connect to the AT&T telephone network.

Net neutrality, a term coined in 2003 by professor and author Tim Wu, has been ensured in various ways by Republican and Democratic FCC chairs.

Republican FCC Chairman Michael Powell announced the "four freedoms" policy in 2004, saying that Internet users should have the freedom to access the legal content of their choice, to use the applications of their choice, to attach personal devices to the network, and to obtain meaningful information about their service plans.

The Bush-era FCC took action against ISPs that violated neutrality principles, such as a DSL provider that blocked Voice over Internet Protocol phone calls in 2005. The FCC then punished Comcast for throttling BitTorrent in 2008, but Comcast sued the FCC and got the commission's order overturned.

Comcast's court victory made it clear that the FCC needed enforceable rules in order to police net neutrality. In President Obama's first term, the FCC imposed rules against blocking, throttling, and paid prioritization and required ISPs to be transparent about their network practices.

Verizon sued to overturn the rules, telling judges that it wanted to explore commercial arrangements with websites, and won in January 2014. The key problem with the rules was that the FCC tried to impose them without reclassifying ISPs as common carriers. The FCC fixed that in February 2015 by reclassifying ISPs, and a new, stricter version of the net neutrality rules was upheld upon appeal.

Further Reading

By deciding that the FCC doesn't need any net neutrality rules at all and that ISPs should be able to block or throttle Internet content as long as they disclose it, former Verizon lawyer Pai is breaking with both Republican and Democratic predecessors. Pai's predecessors under Presidents Bush and Obama tried to enforce no-blocking and no-throttling principles. Under Bush, this came through direct action against ISPs that block or throttle, and under Obama it took the form of industry-wide rules.

As a commissioner in the Republican minority, Pai voted against the imposition of net neutrality rules and insisted that Congress—and not the five "unelected" officials on the FCC—should decide the issue. Upon taking over the chairmanship in January 2017, Pai said he supports "a free and open Internet" but that he opposed the use of Title II—the legal authority that allows the FCC enforce network neutrality. Despite calls from even some Republican lawmakers to wait for Congress to decide the issue, Pai pushed ahead with the repeal.